By Coral Beach
There’s no question that truckers know how to get from Point A to Point B. That’s what truckers do – they deliver. Regardless of the challenges, they get there, because that’s what truckers do.
Thirty-five years ago, when Jim Johnston and a handful of other drivers founded OOIDA, they knew where they wanted to go and had the drive to get there.They wanted a fair shake. They wanted a level playing field. They wanted the freedom to pursue their livelihood without the threat of retribution from motor carriers that wanted to treat them like indentured servants instead of business partners.They knew they were at Point A and needed to get to Point B, but Rand McNally’s 1973 edition didn’t include a truck route to that destination, so OOIDA’s founders set out to forge a path.
Blazing a trail
Now, as president and CEO of the Owner-Operator Independent Drivers Association, Johnston has the benefit of hindsight, but he’s not second-guessing the path that he and the Association started down during the fuel crisis of 1973.
“We knew where we needed to get to and we headed out,” Johnston said. “We weren’t exactly sure how to get there, but we knew where we needed to go.”
Blazing that trail turned into a full-blown, nationwide paving project that is as important to owner-operators, company drivers and independent-thinking truckers as the interstate system.
Early on, it was clear to Johnston and other OOIDA leaders that legal action was needed on a variety of fronts.Regulations and laws needed attention, for example, and in 1975 OOIDA shined a legal light on problems with freight bills. Soon, truckers gained the right to demand a copy of a rated freight bill for every load they hauled.
In the late ’70s, when the Interstate Commerce Commission was considering giving independent truckers new legal protection with federal truth-in-leasing regulations, OOIDA continued down the path of enlightenment – governmental enlightenment, that is.
We convinced government of the importance of the leasing regs,” Johnston said, adding that the Association then stepped up to monitor the situation, serving as a kind of legal watchdog for truckers who didn’t have the means to challenge large motor carriers.
Winning the right of private action was a huge victory for truckers because it meant that they didn’t have to wait for the government to enforce the leasing regulations. Truckers themselves could take the carriers to court.
Practically speaking, the drivers couldn’t take the carriers to court by themselves because of the economic disparity between an individual owner-operator and a big-business carrier.”
So OOIDA stepped up again. The Association has spent millions – more than $14 million in the past decade alone – on court battles to force motor carriers to abide by the letter and intent of the truth-in-leasing regs. The investment has paid off.
But OOIDA’s legal strategy includes more than merely clearing out the bullies who are blocking truckers’ road to prosperity.
From its conception, the Association’s leaders knew that they had to watchdog not only motor carriers, but also government – and not just the federal government.
State governments across the country drew the attention of OOIDA’s legal team through the 1980s and into the 1990s in a series of court actions related to special trucking taxes often referred to as “bingo stamps,” “cab cards,” “fuel stickers” and “decal fees.”
Johnston said he feels particularly good about the work OOIDA did on behalf of truckers in many states where tax laws were changed and refunds were made.
The state tax cases brought to an end the proliferation of discriminatory taxes and fees, including regulatory fees,” Johnston said.
And while some of the state tax cases were initiated by another organization on behalf of motor carriers, OOIDA intervened on behalf of owner-operators to ensure that they got their fair share of the refunds. Johnston said that the ATA was filing suits against the states and getting refunds, but the refunds were not being passed through to the owner-operators who had actually paid the taxes.
By intervening and filing lawsuits of its own in other states, OOIDA was able to assist in owner-operators receiving a total of almost $21.5 million in refunds from 17 states.
An added benefit of the state tax litigation, according to OOIDA officials, is that it turned the states’ expressway to revenue into a dead-end street. The lawsuits basically ended the rush of states seeking to gouge truckers with special taxes. However, Johnston said, the Association continues to watch for such inequities and stands ready to go to court to keep such obstacles out of the way of owner-operators.
In 1990, OOIDA went to court against government again. Corrupt public officials in Tennessee were using state employees and agencies for political gain and discriminating against truckers in the process.
The Tennessee Public Service Commission case was most satisfying, probably because the officials’ conduct was so outrageous,” said Johnston.
That conduct included everything from PSC truck enforcement officers shaking down out-of-state truckers to state employees being given undesirable assignments when they ticketed truckers who worked for companies that made campaign contributions to the “right” politicians.
Now, 18 years later, Johnston still bristles visibly as he recalls one incident when a husband and wife team was put through a so-called inspection. During the incident the wife – who had been taking her break in the bunk and was sick with the flu – was forced to stand on the roadside in the rain for an extended period of time because officers wanted to conduct a warrantless search, which ultimately turned up nothing.
OOIDA’s legal action resulted in the PSC being stripped of its authority to enforce trucking regulations. In 1994 a federal court ruled that PSC Commissioner Keith Bissell’s campaign fundraising tactics violated truckers’ rights. In 1995 the Tennessee PSC was abolished.
As the state tax cases and the Tennessee PSC suit moved forward, smoothing the road for truckers in some ways, OOIDA staff became more and more aware of the uneven pavement truckers were encountering in terms of lease agreements with motor carriers.
Although the federal leasing regulations were designed to help pave the way to fair and profitable relationships between owner-operators and motor carriers, there was widespread disregard for the rules. In fact, in 1982 the ATA contested the leasing law, saying that owner-operators were already being treated fairly.
The motor carriers just ignored the truth-in-leasing regulations,” Johnston said.
Common breaches of the leasing regs included motor carriers failing to disclose markups on chargebacks; requiring truckers to buy goods or services; failing to pay truckers on time; improper use and retention of truckers’ escrow funds; improper confiscation of fuel tax credits; and failing to pay owner-operators the percentage of revenue that was stated in their lease agreements.
Once again OOIDA stepped up.
Patching the potholes
The Association paved a crucial stretch of legal road with its case against New Prime Inc., which established that the Interstate Commerce Commission Termination Act provides truckers the private right of action against motor carriers.
Since then, federal courts have repeatedly reinforced that right by giving OOIDA and individual truckers their day in court against carriers large and small, including C.R. England and Arctic Express. Each case heard strengthens individual truckers’ rights to stand up against big-business carriers.
When the private right of action came into play we didn’t really expect the motor carriers to dig in and combine resources like they did,” Johnston said. “But they did dig in because they really wanted to protect their turf and the revenue source they had been able to generate at the owner-operators’ expense.
The motor carriers didn’t need to make any money on the freight because they were making a profit off their owner-operators.”
Next came confirmation from the courts that claims pursued under the private right of action as provided by the ICCTA were subject to a four-year statute of limitations. Motor carriers had been telling truckers for years that they only had a two-year window of opportunity to file claims.
OOIDA has successfully invoked the four-year statute of limitations in numerous cases against carriers, including C.R. England, Bulkmatic Transport Co., Ledar Transport, Allied Van Lines, Swift Transportation and Heartland Express.
Another key legal victory for truckers came when OOIDA won confirmation that arbitration clauses in carriers’ leases are unenforceable. The arbitration clauses were a huge bump in the road for truckers who were trying to resolve their claims against unscrupulous carriers.
With the arbitration obstacle eliminated – and armed with the private right of action, the four-year statute of limitations, and a litigation fund larger than any single owner-operator could muster – the Association took on carriers one by one, often representing thousands of truckers at a time in class actions.
It was soon obvious at OOIDA headquarters that motor carriers were starting to pay attention.
Some carriers voluntarily revised their leases. OOIDA members happily contacted the Association’s staff to review their new leases.
As the 1990s progressed, staff in the Association’s Compliance and Member Assistance departments started noticing that calls from members with complaints about non-compliant leases were not as common as they had been. OOIDA’s strategy was working.
But some of the court cases were taking years to resolve. Not unlike truckers waiting at docks, OOIDA leaders became frustrated with the slow going.
I was surprised,” Johnston said earlier this year. “I really thought the leasing reg cases would be slam dunks. ... Mayflower is going on 10 years, now. We initially thought it would be two or three years per case, tops.”
The road ahead
Because it has taken longer to resolve issues with motor carriers’ leases than Johnston thought it would, it has naturally cost more than he had anticipated. And although the OOIDA president and CEO knows money is always an issue, Johnston said that the Association can and will continue to handle the financial burden.
The Association has spent about $14 million in the past decade fighting for the rights of truckers in America’s courts.
We’ve gotten about 10 percent back in attorneys’ fees,” Johnston said. “But it’s still easier for the Association to shoulder that than it would be for individual owner-operators to try and match the economic power of motor carriers in court.”
The litigation fund that allows OOIDA to face off with carriers in federal court is, however, dependent on individual truckers in a way. The premiums that truckers pay when they buy insurance through OOIDA is a critical funding source.
Johnston said that all of the so-called profits from the insurance business, which is wholly owned by the Association, go back to OOIDA. No individual has any ownership in the insurance operation, which was initially set up to provide members with more reasonably priced coverage than they could get from for-profit insurance companies.
Members can contribute directly to the litigation fund, too,” Johnston said, “but that’s not the most important thing for them to do.
The most important thing is for them to understand why we pursue these legal actions.”
And although the Association has secured more than $30 million in settlements from its court battles, much of which has been reimbursed to individual truckers in the class actions, Johnston is quick to explain that settlements are not the motivating factor behind OOIDA’s legal strategy.
It’s not really about recovering money, while that’s obviously important to the owner-operators who have been skinned by these motor carriers,” Johnston said.
The main purposes are to see that the original intent of the truth-in-leasing regs is fulfilled and to build a foundation in the law. These cases are not just about enforcement, they are about legal interpretation and precedent and how truckers are going to be treated in the future.”
That’s what Johnston reminds himself of when he starts getting anxious to get to Point B. He admits that OOIDA isn’t there yet, but having been working on the path for 35 years now, he is more sure than ever that the Association knows where it needs to go.
The only thing that he is more sure of, he said, is that just like the American trucker, the Association will deliver. LL